The  Principles Underlying the U.S. Form of Government

In my January 1967 application for admission to the Bar of the State of New York, I provided the following statement on what I believed were the principles underlying the form of the government of the United States.

My Statement

Underlying the form of the government of the United States is, in my opinion, the view that government is a necessary evil to ensure that individuals can exist together in a society. Thus, the government is in theory created by the people only for limited purposes, and limitations are placed upon governmental authority in order to preserve unfettered individualistic determination where governmental power is not needed for societal living.

One means of effectuating the desire for limited government is by having a government by laws, not by men. Under this principle of American government, the actions of those in positions of governmental authority are not acts of complete discretion, but are actions which accord with some general rule, whether it be a constitutional rule or statutory or common law rules which are created pursuant to constitutional rules. Thus, a governmental act to be proper must be justified by reference to a general rule.

Another means of effectuating the desire for limited government is by adherence to the principle of separation of powers. The Constitutions of the united States and of New York, while specifically denying certain powers to the governments, create governments of certain enumerated powers which are entrusted to different institutions or organs of the government. The principle of separation of powers is based upon the assumption that limitations on governmental authority will be more difficult to circumvent where there are checks and balances within the government  than where authority is lodged in a single person or organ. The federal system of distributing power among a central government and provincial governments rests, in part, upon the same assumption.

The popular election of legislators and chief executives of government and the principle of majority rule ensures that the government is responsive to the needs of the people and, so long as the majority of the people desire limited government, is another means of effectuating that desire. The constitutional rules are barriers to the transitory majority’s overthrowing the basic commitment to limited government.

The principle of judicial review of the constitutionality of statutes and other government actions is yet another way in which the American government implements the principle of limited government. Allowing a person to challenge the legitimacy of a statue or other government action where its application would have a harmful effect on him means that citizens and lawyers as well as persons in positions of governmental authority are constantly engaged in the process of determining whether the American commitment to limited government us being honored in particular circumstances.

Government is deemed necessary because man is basically selfish and aggressive. Conflicts between men and between man’s institutions are an inevitable result of man’s selfish and aggressive nature. The courts in the American system provide a means whereby these conflicts may be resolved peacefully and in accordance with rules which are designed to advance the common good and promote justice. It is to assist in this task that I wish to become a lawyer.

Conclusion

I was admitted to the bar of the State of New York in 1967 and then in 1970 to the bar of the State of Minnesota. I still affirm the preceding Statement.

Trump’s Unfounded Fear of Refugees

We all know full too well about President Trump’s repeated assertions of fear of refugees killing and harming Americans as purported justifications for his proposed restrictions on admission of refugees into the U.S.

There are so many reasons to reject and oppose these assertions and restrictions. Here are just two.

First, as Nicolas Kristof, New York Times columnist, points out, the facts do not support the claimed fear. In the last 40 years, “terrorists born in the seven nations in Trump’s travel ban killed zero people in America” while Americans with guns killed 1.34 million. This includes 230,123 murders by Americans who were Muslims.  The latter set of murders is exceeded by murders with guns by American husbands.  (Kristof, Husbands Are Deadlier Than Terrorists, N.Y. Times (Feb. 12, 2017).)

Second, all of the scare tactics of Trump and his allies fail to mention that refugees are those individuals who have proved, under international and U.S. law, that they have a “well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group.” Assembling the evidence and legal arguments for a claim to ‘refugee’ status is not easy by itself, and such a claim is subject to cross examination and vetting by representative of the United Nations High Commissioner for Refugees or the U.S. government.

It is not easy to persuade these officials as I can attest as a pro bono attorney for aliens who have sought asylum in the U.S. by proving that they were “refugees” under the previously mentioned laws. (Refugee and Asylum Law: Modern Era, dwkcommentaries.com (July 9, 2011); Multilateral Treaties Ratified by the U.S., dwkcommentaries.com (Feb. 9, 2013); Becoming a Pro Bono Asylum Lawyer, dwkcommentaries.com (May 24, 2011).)

Indeed, a detailed review of the current, more elaborate, multi-year oUNHCR and U.S. procedures for reviewing and vetting applications for “refugee” status, especially from Syria and Iraq, has been provided by a former U.S. immigration officer. (Hall, Refugees are already vigorously vetted. I know because I vetted them, Wash. Post (Feb. 1, 2017).)

Given these legal requirements and the extensive vetting of claims for refugee status that exists today, it certainly always would be legitimate to consider in a calm and rational manner whether improvements could be made to U.S. procedures for evaluating such claims. But to scream or tweet an unspecified need for “extreme vetting” is hysterical poppycock.

Another Perspective on the Dysfunctionality of the U.S. Government

Philip K. Howard
Philip K. Howard

The dysfunctionality of the U.S. government has been common theme of this blog.

Another reason for this unfortunate phenomenon is posited by Philip Howard in an op-ed article in the Washington Post and presumably in his book, The Rule of Nobody: Saving America from Dead Laws and Broken Government.

Howard believes the “main culprit” for dysfunctionality is law. “Generations of lawmakers and regulators have written so much law, in such detail, that officials are barred from acting sensibly. Like sediment in the harbor, law has piled up until it is almost impossible — indeed, illegal — for officials to make choices needed for government to get where it needs to go.”

Examples are cited. The President “lacks the power to approve the rebuilding of decrepit bridges and roads.” Legally required reviews for highway projects now take up to eight years. New statutes these days are complex and lengthy.

“Human responsibility,” Howard argues, “should be restored as the operating philosophy for democracy. Only real people, not bureaucratic rules, can make adjustments to balance a budget, or be fair, or change priorities. Democracy cannot function unless identifiable people can make public choices and be accountable for the results.”

“Our government is failing not because of bad policies but because of flawed institutional design. No one is allowed to take responsibility.”

Howard is a frequent commentator on national issues and the author of several books. In 2002, he formed Common Good, a nonpartisan national coalition dedicated to restoring common sense to America. Howard is a Partner in the New York City office of the law firm of Covington & Burling, LLP, where he represents corporations and executives in a wide range of issues, including governance, regulatory disputes, securities litigation, and business transactions.  He is a graduate of Yale College and the University of Virginia Law School.